SELECTION OF IMMIGRANTS 
AT THE SOURCE 


A BRIEF SUBMITTED BY 
HON. JOHN e. BOX 


PRINTED FOR THE USE OF THE 
COMMITTEE ON IMMIGRATION AND NATURALIZATION 
HOUSE OF REPRESENTATIVES 




WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1923 










LIBRARY OF CONGRESS 
RECEIVED 

F.:3 1 6 1924 


DOCUMENTS DIVISION 



Oo 



f J 

S 

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SELECTION OF IMMIGRANTS AT THE SOURCE. 


By JOHN C. BOX. 


From time to time for many years there has been talk of selecting 
immigrants at the source. If it were possible to adopt such a plan, 
and make it work, and if its adoption and application did not in¬ 
volve the sacrifice of important principles and vital practical interests, 
it would be a good thing. Manifestly, though, this is like saying that 
if it were possible for government to be maintained without levying 
taxes, that would be a good thing. 

The writer has been surprised to hear intelligent business men and 
others, who are supposed to have reached conclusions based on in¬ 
formation and consideration, criticize their Government for not hav¬ 
ing adopted a proposition, which according to the easy words of the 
critics, would be so “humane,’’ “scientific,” “simple,” “practica¬ 
ble,” and “easy” that any legislator could provide for it. Many 
people, who would not be expected to adopt or indorse any im¬ 
portant business or legislative suggestion without having thought 
out what was involved in it, have urged the adoption of this measure, 
and, when questioned, have frankly confessed that they have not 
inquired whether the Government has considered such a plan and 
found it unworkable, or whether other governments would permit 
us to maintain immigration inspecting stations and forces in their 
countries, or whether such a plan entails consequences which we must 
avoid. Such questions as whether it could be done at all, whether 
it would work, and whether foreign governments would permit it, 
are passed over as of no importance, while people speak and print 
their criticisms. of the. Governnient of the United States for not 
having done this thing which they treat as so simple and easy. 
I mfortunately, those who make and administer law have to deal with 
facts as they are. Lecturers, speakers, newspaper and magazine 
writers, and others who discuss public questions, can ignore or as¬ 
sume facts, as may be convenient, but facts bristle in the paths of 
those who have to do things instead of talking about them. 

This proposal is not a new one; it has been brought forward and 
received thorough consideration before. Decades ago our Govern¬ 
ment even went so far as to try to find a way for the adoption of the 
plan, though the writer has no doubt that this was done with fore¬ 
sight that the adoption and w^orking of the proposition was im¬ 
probable. In 1910 wSenator Lodge, now chairman of the Foreign 
Affairs Committee of the Senate; Senator Dillingham, long a leading 
member of the Senate Committee on Immigration; Hon. John L. 
Burnett, afterwards chairman of the House Committee on Irnmigra- 
tion and Naturalization; Senator McLaurin; Prof, tlereniiah W. 
Jenks, long an immigration expert; as members of the National Im- 

1 


70503—23 




SELECTIOX OF IMMIGRANTS AT THE SOURCE. 


Q 


ndgration Commission, said of this proposition: “This plan was so 
strongly urged that this Government a few years ago made official 
inquiry respecting the probable attitude of European governments 
toward it. At that time one or two governments’’ (arnong several 
scores whose consent was necessary) “expressed a willingness to 
permit such an inspection b}^ American officials; others made indefi¬ 
nite replies to the inquiry, while others were positively opposed. 
No attempt was thereafter made to further the plan. After an 
investigation by the commission of the situation at all the principal 
ports of Europe it is clear that even were its consummation possible, 
such an arrangement would not materially improve conditions.” 
The reader will note that the suggestion for the adoption of such a 
plan had been strongly urged some years before these gentlemen 
investigated and reported their findings, which they did more than 
a decade ago. 

The suggestion involves, first, grave, and probably insuperable, 
diplomatic difficulties; it is unworkable; while its adoption and use, 
if possible, would involve consequences which the country must not 
accept. The reader’s attention is invited, first, to the diplomatic 
difficulties which have heretofore barred the way to the adoption of 
the plan. The passage quoted above shows that these are not new 
and that they have heretofore bi^en too serious to be overcome. In 
a statement published during the fourth session of the Sixty-seventh 
Congress, First Assistant Secretary of Labor Henning, who is in 
charge of immigration matters and acquainted with tiie facts, as 
contra-distinguished from the theories, concerning it, published a 
statement in which he is quoted as saying: “Foreign countries 
steadfastly have refused to allow the United States to examine im¬ 
migrants at ports of departure on the ground that the exercise of that 
function by anv nation would be an invasion of sove.reiirntv. At- 
tempts to extend these powers to include direct action in examination 
and selection of immigrants who have been consistently objected to by 
France, Italy, and other foreign governments.” Let the reader note 
and consider Assistant Secretary Henning’s use of the words “stead¬ 
fastly” and “c/msistently ” in connection with the words of Senators 
Lodge and Dillingham, Hon. John L. Burnett, and others, some 12 
years earlier. 

Since the above was written the Hon. Edward J. Henning, Assistant 
Secretary of Labor, who has actual charge of the administration of 
the immigration laws, in an address before the Twenty-sixth Annual 
Convention of the American Mining Congress, published in the 
Mining Congress Journal of October, 1923, said on this subject: 

The countries of Europe refuse flatly to let us actually examine aliens in 
their countries. You read the sob stories of hardships. Every mail brings us 
many letters from good men and women all over the country abusing us like 
beggars and saying, “Why do you tolerate this awful thing of people leaving 
their homes and coming to Ellis Island and being turned back? Oh, what brutes 
you are!” They say, “Why do you not go to Europe and pass on them before 
they come?” To date, there isn't a country in Europe that would permit 
that for one moment. The proposition of examination abroad has often been 
before Congress. Always there was objection from the countries involved. 
They come and say to us, “You are invading the sovereignty of our country 
by proposing to come over there and saying who may leave our country. ” They 
intend to do the selecting themselves. The gentle art of “unloading*^” is as old 
as Europe, and they are not seeking to give us the flower of their manhood and 
womanhood. 


SELECTIOX OF IMxMlGRAXTS AT THE SOURCE. 


3 


riie House Committee on Immigration and Naturalization has 
considered the suggestion, and, doubtless in deference to the repeti¬ 
tion of the proposition, in its report to the Sixty-seventh Congress, 
No. 710, accompanying House Joint Resolution No. 268, said: 

OBJECTIONS TO EXAMINATIONS OVERSEAS. 

The heanngs of the committee have covered all phases of the subject. Con¬ 
siderable time was spent in attempting to develop a plan of examination of 
immigrants at ports of embarkation, Imt these efforts were made with a letter 
from the Secretary of State. 

Some members of the House and Senate had introduced bills 
adopting this suggestion. That gave rise to the writing of the fol¬ 
lowing letter to Secretary of State Hughes by the Italian ambassador: 

MEMORANDUM FROM ROYAL ITALIAN EMBASSY. 

The royal charge d’affaires for Italy presents his compliments to his excellency 
the Secretary of State and has the honor of bringing the following to his attention: 

During the special session of this Congress there have been presented bills— 
one in the Senate and two in the House of Representatives—by the terms of 
which, among other provisions, it is projiosed to have United States medical 
and immigration officials in the United States consulates, or elsewhere, to exercise 
functions not purely informative in character but of direct action in the medical 
examination and definite selection of the emigrants, connecting such functions 
with that of the granting of the consular vis4 to passports. 

Such action, even if exercised in the interior of the consulate offices, would 
go beyond the usual consular functions recognized by treaties, and pertaining, 
as it does, to interests connected with emigration whose regulation is reserved 
to the sovereignty of each State, could not be considered as conforming with 
either treatv or law on emigration in Italv. 

It is true that this is a matter relating merely to jiroposed legislation; never¬ 
theless, the intense desire to avoid later any possible motive for discussion 
between our two countries inspires the friendly intention of the present recom¬ 
mendation, especially since it has been stated to the Secretary of State that 
the Italian Government would be most willing to meet the wishes of the United 
States in conforming the action of its emigratory services so as to satisfy the 
reasonable requirements of the American regulations if both can be made the 
subject of a specific agreement beforehand, as already suggested. 

The embassy would certainly have hesitated to approach the Secretary of 
State on this matter were it not that the Secretary of Labor, in recommending 
the above-quoted bills according to public iiress statements, had not made it 
felt that the measures before Congress probably expressed views not contra¬ 
dictory to those entertained by the United States Government, whereupon 
an}’ assurance on the subject, if possible, on the part of the Department of 
State, so that in time it be forwarded to the Italian Government, would be 
highlv appreciated bv the Italian Embassv.—Washington, D. C., September 
15, 1921. 

The letter of the Secretary of State follows: 

Department of State, 

• Washington, December 28, 1921. 

My Dear Mr. Johnson: I inclose copy of a memorandum of Septernber 15 
from the charg5 d’affaires ad interim of Italy, in which ho discusses certain bills 
which have been introduced in Congress providing for the examination in Amer¬ 
ican consulates of aliens desiring to emigrate to the United States. 

Informal objections to the proposed legislation have been made by repre¬ 
sentatives of other countries, and I shall endeavor to keep you informed as to any 
further objections which may be received by this department from representatives 
of interested foreign countries. 

As this matter touches upon the foreign relations of the United States, I would 
ask that you be so kind as to keep me informed concerning the progress of the 
proposed legislation. 

I am, my dear Mr. Johnson, sincerely yours. 


Charles E. Hughes. 


4 


SELECTION OE IMMIGRANTS AT THE SOURCE. 


In the second paragraph of his letter to Chairman Johnson, Secre¬ 
tary Hughes informs him that ‘‘informal objections to the proposed 
legislation have been made by other countries.” It must not be 
understood that Italy is the only country making these objections. 
The country which does not make them is an exception. On June 2, 
1922, as will appear in the Congressional Kecord of that date, the 
writer, while presenting this situation to the House of Representa¬ 
tives, was interrupted by Hon. Albert Johnson, long a member, and 
now chairman, of the House Committee on Immigration and Natural¬ 
ization, who then remarked: 

I would suggest that he (the writer, who then had the floor), do not omit 
from his present discussion the fact that other governments are at this time 
making protests quite similar to the one that he has just read from the Italian 
Government, against proposed provisions in the so-called shipping bill, clauses 
of which would authorize investigation overseas. I am told that these pro¬ 
tests against the new legislation, now being considered before another com¬ 
mittee, are much stronger than have been made heretofore. 

During the same discussion the writer was again interrupted by 
Mr. Connally of Texas, a member of the Foreign Affairs Committee, 
who said: 

Mr. Chairman, if the gentleman will permit, in that connection I would say 
that, as I recall now our hearings on the passport control bill, it developed that 
practically all of the foreign countries objected to the setting up in their coun¬ 
tries of agencies for the investigation and examination of immigrants. 

These official statements by a member of the Foreign Affairs Com¬ 
mittee, by the chairman of the House Committee on Immigration 
and Naturalization, the National Immigration Commission, the 
Assistant Secretary of Labor in charge of immigration administra¬ 
tion, and by Mr. Hughes, the present able and experienced Secre¬ 
tary of State, all showing that this suggestion is not a new one, ani 
that the proposition has again and again met insuperable diplomatic 
difficulties, ought to remind writers and speakers interested in 
helping the country solve its great immigration problem that they 
are doing a vain and hurtful thing in inconsiderately leading public 
thought into a blind alley. 

Students of the problem will probably inquire by what right and for 
what reason foreign governments prevent our doing this, if we want 
to do it. First, let us understand that the maintenance of embassies 
and consulates in foreign countries is entirely a matter of diplomatic 
usage and treaty agreements. We can not maintain an ambassador, 
a minister, or a consul, or any kind of an official representative in any 
foreign country against its will. Diplomatic usage sanctions the 
maintenance of embassies and consulates which promote ends 
desired by both parties to the agreement. Their establishment and 
activities are wholly subject to treaty agreement and the consent 
of foreign powers. Their withdrawal may be demanded and en¬ 
forced by such power at any time. 

The scopes of the activities of consuls, ministers, and ambassadors 
are fixed or limited by usage and agreement and can be extended only 
by consent. The selection of would-be immigrants is not one of the 
usual functions performed by consuls or diplomatic representatives. 
The treaties under which such representatives are maintained do 
not authorize the establishment or maintenance of immigration 
stations of any kind, nor the performance of any of their functions 
on foreign soil; neither does diplomatic usage sanction it. These 


SELECTION^ OF IMMIGRANTS AT THE SOURCE. 


5 


officers and the performance of tliese functions within the territory 
of a foreign sovereignty without the consent of such country is 
impossible, unless enforced hy war. 

The motive which prompts them to consent to the establishment 
and maintenance of consulates and embassies is mutual commercial 
and diplomatic interest. This mutuality of interest does not exist as 
to immigration. Japan, China, England, Spain, Italy, and other old 
world countries, usually want a place to miich they can send their 
surplus or undesirable population. Our immigration laws are de¬ 
signed to prevent their unloading this surplus and burdensome popu¬ 
lation on us. Thus we desire to prevent what they desire to do, con¬ 
cerning immigration. They will not go beyond the limits of diplo¬ 
matic usage to agree with us upon the establishment of agencies on 
their soil by whicli they would help us do what they want to prevent. 
This is not merely natural and logical; it is actual." 

The phrases selecting immigrants abroad” and selecting immi¬ 
gration at its source” may mean selection at a few great clearing 
houses abroad, or it might mean going to their very doors to choose 
them. Let us consider the suggestion interpreted into each of these 
meanings. It is impossible to go to each immigrant’s home or lodg¬ 
ings to look him over and accept or reject him or her there. They 
come from millions of homes or lodgings, in eveiw nook and cranny 
of the world. To seek out each prospective immigrant at his place 
of abode and have him examined as to health, social and moral 
desirability, is an impossible undertaking, which will he rejected upon 
its suggestion. To establish ample immigration stations and forces 
in every country of the world, equip and maintain them, would be at 
prohibitive expense, and involve administrative difficulties which 
would make it impossible. Some of these will be pointed out in sub¬ 
sequent paragraphs. The establishment of a few great immigration 
clearing houses on the seacoasts of Europe, Africa, and Asia would 
itself involve an enormous additional expense, and would not elimi¬ 
nate our present home establishments and expenses; but, aside from 
that, no country in which we would want to establish such agencies 
would think of permitting it. 

If one of these were maintained in London or on the coast of 
France, or Spain, or Italy, it would mean that millions of all kinds 
of people, including the criminal, diseased, and insane, would gather 
from all the countries near and back of that portion of Europe to be 
examined and have the bad rejected and left upon the country which 
was foolish enough to permit us to make it such a dumping ground. 
Does anybody imagine that the United States would permit Canada, 
which has a restrictive immigration policy, to maintain two or thi^ee 
such stations in the United States near the border,’at which hundreds 
of thousands of all classes would gather and where the worst of all 
classes would be rejected and left in the midst of our people? Some 
countries of Europe, particularly France, probably others, have com¬ 
plained, oflicially or unofficially, because the path of the diseased 
and criminal immigrants from the central and back portions of 
Europe and sections of Asia to the United States leads through their 
countries. It has been oflicially ascertained that certain diseases 
prevalent among our immigrants have been increased and extended 
along this trail traveled by the motley millions coming to America. 
How much worse it would be if the worst were stopped and left 
among the people of England or France. 


6 


SELECTION OF IMMIGRANTS AT THE SOURCE. 


Clearing houses at central points in Europe, Asia, or Africa would 
not eliminate our inspection immigration service at home, because 
we could not maintain guards along every foreign coast and on 
every sea to prevent immigrants from avoiding these clearing houses, 
as thousands of them now avoid our home immigration stations. 
The work of inspecting alien seamen would also have to be done at 
our seaports. The great numbers of would-be immigrants who 
come from or through Mexico and Canada, and from all South 
America and the West Indies, would have to be guarded against 
and inspected. 

The selection of immigrants at foreign clearing houses, or even 
at the very source of immigration, would be a very slow and cum¬ 
bersome process unless we made the finding of each subordinate 
or the administrative head at each station fi^nal and subject to no 
appeal. A policy which gave to subordinate officers, or even the 
heads of local stations, conclusive and final authority is inconsistent * 
with the genius of our Government and our thoroughly established 
policy. We do not permit it, even when our immigration com¬ 
missioners act within out* own boundaries, as it were, under the eye 
of the Commissioner General of Immigration, the Secretary of 
Labor, and the numerous inspectors under their direction; much 
less could we permit it in far-away Europe or Asia. Every immi¬ 
grant offering has a right to have his case appealed to Washington 
and the findings of the commissioner and boards of inquiry reviewed 
by a higher and usually more competent authority. This very 
process causes delays now, of which much complaint is made by 
those who delight in criticizing all restrictive laws and their opera¬ 
tion. But it is a much quicker, simpler procedure to have an appeal 
in such case rushed from Baltimore, New York, Boston, or even 
San Francisco, to Washington for early disposition than it would 
be to send it from Warsaw or Constantinople or Tokyo and wait 
weeks for final action and instruction. 

One argument advanced in favor of foreign selection is that it 
would protect immigrants from the hardship resulting from their 
selling their effects and breaking themselves loose from their homes 
and sources of livelihood, expecting to be admitted to the United 
States, and thereafter finding themselves denied admission and 
thrown adrift, penniless, friendless, and away from home. Unless 
these stations were located, at prohibitive cost, in hundreds of 
places, the prospective immigrants could not be selected near their 
present homes. The establishment of immigration stations in a 
few great cities on the coasts of Europe, Asia, and Africa, would 
not meet this difficulty. These seaports are hundreds of miles from 
the present homes* of most of the immigrants, and in countries for¬ 
eign and strange to them. They would have to go in families 
hundreds of miles, often across national boundaries, necessitating 
passports, and a great part of the travel, expense, and difficulty 
which they now meet. The average immigrant can not, without 
selling all, carry his family from the center or back side of Europe 
to the seacoast for examination. If he could, he would not know 
how long it would require him to return to his home with his family, 
to sell out and thereafter return to the immigration station on the 
coast. The uncertainty, delay, expense, and other difficulties of 


SELECTION OF IMMIGRANTS AT THE SOURCE. 


7 


such a course would forbid its adoption by the average immigrant. 
He usually sells all; and, under the proposed plan would sell all, 
and break up completely, before leaving his old home to go to the 
place of inspection and embarkation. The risk of this break-up 
would have to be incurred under any system except one which sent 
the inspector to each immigrant at or near his present home, which 
is manifestly impossible. 

The suggestion that the ^'division of families” would be avoided 
by foreign selection will not bear examination. If a man migrated 
five years ago, and lawfully or unlawfully, entered the United States, 
leaving his family in Europe or Asia, and has decided to stay away 
from them, unless they are successful in their efforts to come to him, 
will their rejection in Europe or Asia reunite the family? If a 
whole family start together, and part of them stand the tests and 
enter, while others can not meet the requirements as to health, 
intelligence, or numbers, and are rejected in Europe, will that keep 
them together? Not if the admissible members elect to remain 
away from the rejected members, which they must do under the 
present system to create a case of ‘^separation.” 

The steamship companies, relatives, and other opponents of restric¬ 
tion, and some restrictionists, are engaging in this talk of regulating 
immigration at the source, which means, among other impossible 
things, treaty control of immigration. The letter of the Italian 
ambassador to Secretary Hughes, above quoted, states in polite, 
diplomatic language, “that the Italian Government would be 
most willing to meet the wishes of the United States in conform¬ 
ing its emigratory services so as to satisfy the reasonable require¬ 
ments of the American regulations, if both can be made the subject 
of a specific agreement beforehand, as already suggested.” The 
reader will observe two suggestions in the clause quoted: First, that 
Italy has an “emigratory service”; which is true. It has a regu¬ 
larly organized system under which, for the profit of the business 
and for relief from its burdensome surplus population, it is sending 
its people away. Many other crowded countries are doing the same 
thing by difierent methods. . Second, it has proposed that we make 
our regulations ‘Reasonable” to Italy and that we make them “the 
subject of a specific agreement beforehand,” which means that we 
would have to agree with Italy about our immigration policy. Under 
the present system we have to agree with nobody about it; which is 
fortunate, because they want to unload on us and we want to avoid 
having them do it. 

^\jnbassador Geddes, of Great Britain, is quoted as favoring the 
adoption by the United States of a policy of foreign selection “if 
possible.” The words “if possible” are considerately used by that 
accomplished diplomat, doubtless because he appreciates that it prob¬ 
ably is not possible; but Ambassador Geddes’ suggestion in behalf of 
England, is in line with that made by the Italian Government in 
behalf of Italy. Both are based on our obtaining the consent of 
foreign governments; which is itself contingent upon our consulting 
their interests in our immigration policy. That would withdraw our 
control of immigration from the forum where our own will prevails, 
and gives it to another, the treaty-making power, where foreign 
ambassadors, serving foreign peoples, would have a voice, and must 
give their consent before any polic}^ could be adopted. In that con¬ 
sultation Congress, representing the American people, would have no 


8 


SELECTION OF IMMIGRANTS AT THE SOURCE. 


voice. Naturally foreign governments and their ambassadors favor 
it. Naturally oiir own Govermnent should be too wise to make the 
mistake. This brings us to the discussion of the treaty regulation of 
immigration, to which I invite attention. 

It has been shown that the adoption of the plan of foreign inspec¬ 
tion depends upon treaty agreements, and that treaty agreements de¬ 
pend upon our complying with the wishes of foreign governments 
in our immigration policies; their wishes being to dispose of their sur¬ 
plus and least desirable population, and ours being to have the best 
immigrants or none. Treaties regulating immigration would become 
the supreme law of the land. Our part of immigration regulation 
would pass to the President as the treaty-making power, subject to 
to the ratification or rejection of the Senate. The House would lose 
all voice in this question; so would Congress, as a whole, though-the 
Senate as a part of the treaty-making power would have the legal 
right to be consulted. However, the Nation’s practical experience 
proves that the President might make agreement without the advice 
and consent of the Senate, and that such agreements might control 
immigration, as will be shown hereafter. 

Our experience as to the attitude of our Presidents toward this 
problem should warn us of the danger of passing absolute or chief 
control of it to him. The President’s constant contact with delicate 
and difficult questions of our foreign relations, and the necessity of 
maintaining cordial intercourse with foreign countries, expose him 
and his advisers and agencies to constant pressure toward a tendency 
to too great liberality in immigration laws and regulations. Our 
people now almost unanimously agree that we have heretofore been 
ruinously loose in our immigration policies; but even such restrictive 
measures as have been adopted in the past have nearly all been 
enacted in the face of Executive opposition. Nearly every step for¬ 
ward has been in spite of the President’s veto. 

In 1879 President Hayes vetoed the first Chinese exclusion act. 
(2 I. C. R. 580.) In 1882 President Arthur vetoed an act suspending 
Chinese immigration for a period of 20 years. (2 I. C. 11 . 581.) On 
March 3, 1897, President Cleveland veto.ed an immigration act exclud¬ 
ing illiterates. (2 I. C. R. 573.) President Taft vetoed an immi¬ 
gration bill in 1913 containing a restriction against the admission of 
illiterates. (P. 101, Rec., special sess., 59th Cong.) In 1917 Presi¬ 
dent Wilson vetoed an act excluding illiterates, but Congress passed it 
over his veto. The present percentage ({uota immigration law was 
first passed by the Sixty-sixth Congress, but failed because President 
Wilson withheld his approval. It was again passed by the Sixty- 
seventh Congress and later extended, both acts having been approved 
by President Harding, whose action on tlrese measures was about 
the first approvals by a President of the United States of any measure 
designed to reduce, or strictly regulate, immigration from foreign 
countries. 

In 1863 the Burlingame treaty between the United vStates and China 
declared it to be the inalienable right of men to migrate and emigrate 
at will. California had then been for 15 years alarmed and in 
trouble on account of the coming of great numbers of Chinese. The 
California Legislature had passed laws in efforts to protect the State. 
Pacific coast cities had passed ordinances for the same purpose. 
Congress itself, in 1862, had taken note of the degradation and slavery 
of Chinese coolie laborers, and had forbidden American ships to 


SELECTION OF IMMIGRANTS AT THE SOURCE. 


9 


transport them. This was seven years before the Burlingame treaty 
was made by the President and ratified by the Senate, declaring the 
right of such people to migrate to the United States to be ''inalien¬ 
able.” So aptly did the treaty-making power deal with the problem 
in that instance. 

Conditions in California and on the Pacific coast were then and 
soon afterwards so bad that, in 1872, California was pleading with 
Congress for the exclusion of the Chinese; that is, for the termination 
of the "inalienable right” of Chinese to come to America in tens, or 
even hundreds, of millions. 

A congressional conmiittee was sent to California, where it found 
conditions very bad. In 1879 Congress passed what was practically 
a Chinese exclusion act and undertook to abrogate the obnoxious 
sections of the Burlingame treaty of 1869. 

Here another unfortunate incident to immigration regulation by 
treaty developed. President Hayes vetoed the act of 1879, prac¬ 
tically excluding Chinese immigration, and gave as one reason his 
contention that Congress had no right to abrogate a treaty. That 
action illustrates the fact that the President can by his veto nullify 
an act of Congress, unless a majority of two-thirds or more can be 
induced to override the veto. It would also appear that the Pres¬ 
ident, by and with the approval of two-thirds of the Senate, can 
make a treaty, which, being later than an act of Congress, would 
become the supreme law of the land, and repeal or abrogate an 
act of Congress, even if it had passed over the President’s veto. 
This last probably would not occur; but, under our system, adminis¬ 
tration and Senate majorities might so change as to make it possible. 
After the treaty of 1868, explicitly declaring that Asiatics had the 
inalienable right to migi^ate to the United States, and the veto of 
President Hayes to the act of 1879, because it impaired that treaty, 
a new treaty was made between the United States and China in 
1880, in which China consented for the United States to suspend the 
coming of laborers only, but the treaty explicitly prohibited the 
United States to forbid general Chinese immigration. In that 
same year Congress passed an act suspending Chinese immigration 
for 20 years, but President Arthur vetoed the act, chiefly because a 
20-year suspension of Chinese immigration was not in keeping with 
the^ latest treaty with China, which permitted the United States to 
only limit or suspend the coming of laborers in such a manner and to 
such an extent as should be "reasonable. ” 

It was soon found that this immigration treaty was unwise and the 
United States asked China to agree to its abrogation; but China 
objected and delayed, until Congress passed a drastic exclusion law, 
from which the President withheld his approval until he became con¬ 
vinced that China would not enter into a new treaty abrogating the 
treaty of 1880, of which the United States was by then anxious to 
be rii That was the second successive failure of the treaty-making 
power of our Government to handle Chinese immigration in a manner 
which our own people would tolerate. 

President Roosevelt’s agreement with Japan, made in 1908, 
commonly called "the gentleman’s agreement,’’has now been recog¬ 
nized by both countries for some 15 years. Both Japan and the 
United States have insisted that they were living up to its terms. 

The use of the word "agreements” in the immigration acts of 1920 
and 1922, both passed by the two Houses of Congress and approved 


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SELECTION OE IMMIGRANTS AT THE S' 


LIBRARY OF CONGRESS 


0 038 701 345 3 



by the President, was a conscious and deliberate reuuguitiuu KJl LAACT' 
‘‘agreement” made by President Koosevelt ^vith Japan, regulating 
immigration from that country to the United States. Yet that 
agreement was made bv the President regardless of the mshes of 
Congress and without the consent of the Senate. It was never 
submitted to the Senate for ratification. That agreement was held 
up to the Legislature of the State of California as a valid treaty, 
prevailing over the will and power of that State legislative body. 
In a letter which President Roosevelt wrote to Speaker Stanley of 
the lower House of the California Legislature, under date of February 
8, 1909, protesting against certain anti-Japanese legislation then 
pending in that legislature, among other things. President Roosevelt 
said: 


But such a bill as this school bill accomplishes literally nothing whatever in 
the line of the object aimed at and gives just cause for irritation, while in addi¬ 
tion the United States Government would be obliged immediately to take action 
in the Federal courts to test such legislation, as we hold it to be clearly a violation 
of the treaty. 

Thus President Roosevelt called this agreement, made without 
submission to the Senate, a “treaty” and threatened the Legislature 
of California with its prevailing power as a treaty, to which the 
Legislature of California submitted. 

In my judgment that agreement has always been without legal 
or binding force. However, at least two Presidents have recog¬ 
nized it as valid, and one of them has called it a treatv. Congress 
has twice recognized it, and a sovereign State has submitted to it as 
the supreme law of the land. In addition, it has been in operation 
between two great countries for some 15 years, during which, it has 
regulated the immigration from Japan to the United States. Mani¬ 
festly, then, it is possible that the President might, without consulting 
Congress or even the Senate, inaugurate a system of immigration 
regulation according to his own will. Because that has been done 
in a very vital immigration connection and a precedent thereby set, 
it is more apt to be done again. Lmder such a system neither Con¬ 
gress nor the Senate would have any voice in immigration regulation. 

This vital function should be performed throughout the futme as 
it has in the past, notwithstanding the regrettable exceptions named: 
then the people will retain power, through them elected representa¬ 
tives in the House and Senate, to protect themselves by wholesome 
hmnigration laws, as they have been striving to do for many years, 
in the face of great difficulties, some of which have their origin in 
lack of Executive sympathy. 

The loss by the people of the power to control unmigration through 
their elected representatives, in the transfer of that power from 
Congress to the Executive alone, or to him as the chief part of our 
country’s part of the power to make treaties, would be an irreparable 
calamity. As already shown, foreign countries, under the promptings 
of self-interest, must consent to the provisions of treaties. Under 
that system our immigration policy would be shaped not by the 
representatives of our people but partly by our treaty-making 
power, and partly by foreign countries. If that policy should ever 
be generally and permanently adopted it would entail consequences 
too tragic to be stated here. 


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